M/s Jambai KNM Textiles Pvt. Ltd. vs M/s Vimal Chand Prakash Chand

Deepak Verma, J.—The appeal was listed before us on 5.1.1995 and on the said date we had called or the record of the trial Court and after receiving the records of the civil suit the appeal was taken up for hearing to-day.

This appeal under S.96 read with Order 41 Rule 1 CPC has been filed by the defendant against the judgment and decree dated 20.7.1994 passed by First Additional Judge to the Court of District Judge, Ujjain in CS. No. 6A of 93, parties being M/s Vimal Chand Prakashchand v. M/s Jambai KNM Textiles Pvt. Ltd.

Brief facts of the case are as under:

The respondent as plaintiff had filed a suit against the appellant for recovery of a sum of Rs. 2,87,090/- on the ground that the appellant had purchased cotton from the plaintiff in the year 1989-90 and again in the year 1990-91, but apart from making some payments, had not paid the full amount and price of the cotton so purchased. As per the averment in the plaint the appellant had paid a sum of Rs. 1,00,000/- on 13.5.1991 and Rs. 50,000/- on 27.5.1991. After making adjustment of the aforesaid amounts paid by the appellant to the respondent a sum of Rs. 1,48,934.61 p. was still found to be due and outstanding against it.

From the allegations as made in the plaint it is clear that the accounts between the parties were mutual, current and open as the appellant had been making purchases from the respondent and had also been making some payments towards the price of the cotton so purchased. The suit was filed for recovery of a sum of Rs. 2,87,000/- towards various heads as mentioned in para 9 of the plaint. The said suit was filed in the trial Court on 13.7.1993. Summons of the said suit were ordered to be issued to the defendant-appellant for a date fixed .for 20.9.1993, but on the said date it did not put up an appearance despite service, and therefore, the learned trial Court had proceeded ex parte against it and the case was fixed for 6.10.1993 for framing of issues. However, on 24.9.1993 the appellant-defendant appeared through its counsel and filed an application under 0.9.R.7 CPC for setting aside of the ex parte order passed against it. The said application was taken up for consideration by the Court on 3.12.1993 and on the said date the said application was allowed and the ex parte order passed against the appellant was set aside. The appellant was further granted time upto 23.12.1993 for filing of the written statement.

The matter was thereafter fixed for hearing on 23.12.1993, 24.12.1993, 5.1.1994, 31.1.1994, 16.2.1994, 2.3.1994, 26.3.1994, 15.4.1994 and 7.5.1994. But on none of these date of hearing the appellant filed its written statement even though costs were also imposed on it for not filing of the written statement. The matter was taken up for hearing on 1.7.1994 when it was fixed for filing of the written statement by the appellant. But even on this date the appellant did not file its written statement and sought time for doing the same. Perusal of the order sheet shows that a cost of Rs. 150/- was imposed on the appellant and it was made clear that no further adjournment will be granted and the case shall be proceeded against it under 0.8, R.10 CPC on the next date of hearing if the appellant fails to file its written statement and the hearing was adjourned to 20.7.1994. On 20.7.1994 the appellant once again failed to file its written statement and accordingly the learned trial Court did not have any choice but to proceed Under 0.8, R.10 CPC as was ordered on the last date of hearing. On the same date final arguments were heard and judgment and decree for a sum of Rs. 2,87,000 together with cost and future interest was passed against the appellant.

The appellant is aggrieved by the said order which he has sought to assail mainly on three grounds:

(1) That the suit was barred by limitation as the same was not filed within a period of three years from the date the cause of action had arisen.

(2) That the rate of interest awarded is very high and the learned trial Court committed grave error in decreeing the claim for interest even for the period before the filing of the suit.

(3) That the plaintiff firm is not duly registered under the provisions of the Partnership Act and, therefore, the suit is barred.

We have heard the Learned Counsel Shri L.P. Bhargava for the appellant at length. Critical examination of the plaint shows that the appellant had been purchasing cotton from the respondent-plaintiff from time to time and against those purchases had been making some payments to it. However, on accounting being done and after giving adjustment of all the amounts paid by the appellant upto 27.5.1991 it was found that a sum of Rs. 1,48,934.61 P.'' was still due and outstanding against the appellant. Accordingly a notice was served on the appellant by the respondents counsel on 29.5.1992 claiming thee aforesaid amount together with interest at the rate of 18 percent per annum upto date. Calculating the amount of interest at the rate mentioned in the said notice the respondent filed a suit for S.2,87,000 against the appellant. Since the last payment by the appellant was made on 27.5.1991 and the suit was filed on 13.7.1993 i.e. within a period of 3 years from the date of making of the last payment, therefore, the contention of the Learned Counsel for the appellant that the suit is barred by limitation is highly misconceived and untenable. Since after accounting being done and after giving credit to the payments made by the appellant the suit has been filed within 3 years from the �aid date and, therefore, we are of the view that the suit has been filed very much within the period of limitation as prescribed under the Limitation Act. Thus, the first contention of the leaned counsel for the appellant is negatived and decided against the appellant.

The second contention of the counsel for the appellant is that in absence of any contract the rate of interest could not have been charged at the rate of 18 percent by the respondent and the learned trial Court could not have awarded any interest to the respondent prior to the filing of the suit. However, this argument also appears to be fallacious, perusal of S.34 CPC clearly contemplates that even for any period prior to the institution of the suit the Court has power to award and grant interest to the plaintiff. Further perusal of the proviso also clearly establishes that the rate of interest in a commercial transaction can exceed 6 percent per annum. It cannot be doubted that the said transaction was a commercial transaction and, therefore, the plaintiff was justified in claiming interest at the rate of 18 percent per annum on the amount due and outstanding against the appellant and the leaned trial Court was also justified in awarding he same to the respondent.

A great stress was laid by the counsel for the appellant on a judgment reported in Mahabir Prashad Rungta Vs. Durga Datt, with regard to the rate of interest. We have no dispute with regard to the ratio decided by the Apex Court of the Land. However to the facts and circumstances of the instant case the said cannot be made applicable.

In this view of the matter we do not find any merit in this argument also and accordingly the said argument being void of any substance and merit is hereby rejected.

The third objection is that in absence of registration of the plaintiff as required u/s 69 of the Indian Partnership Act, the plaintiff-respondent could not have brought a suit against the appellant unless the same was a duly registered partnership firm. Perusal of the record and the order sheet shall sow that the appellant had sought several adjournments in the matter and was granted sufficient number of opportunities to raise this objection. The objection which is now being sought to be raised is highly belated and is an afterthought. It is too late in the day for the appellant to come forward and say that on account of this technical flaw the suit should be dismissed. The appellant had not been bona fide in its intentions in raising such a plea. Apart from this, this ground has not been taken specifically in the memo of appeal. We, accordingly, at this stage do not deem it fit to interfere with the judgment and decree, passed by he learned trial court.

A party who had not been diligent and cautious in contesting the matter and had been interested only prolonging the litigation should not be granted any further indulgence. No lenient view can now be taken in this matter. We accordingly dismiss the appeal summarily without notice to the other side.